Ownership | Cultural Appropriation and Copyright

In my last post, I listed ten things I learned or had reinforced in 2018 about making. One of the items listed was this:
“5. Inspiration comes from all over, if you let it. Okay, really, I knew this already, but it was confirmed time and again. Couldn’t you make an amazing quilt inspired by the mask above?”

This is the mask:

Bat mask from Burkina Faso, on display (and for sale) at Beadology in Iowa City. Maybe about 4′ wide.

This evocative piece is from Burkina Faso, a country with an estimated 70 languages. Even so, with its geometric designs, it speaks the same language as patchwork quilts. It’s easy for me to imagine making a quilt inspired by it. But is it fair for a white woman from midwestern US to mimic symbolism from across the world? I don’t know.

In fact, that’s what this post is about: things I didn’t learn in 2018. Two of the most important things about making that I didn’t learn in 2018 have to do with ownership. Who owns the right to create certain objects, symbols, or designs? Answers to this question have to do with both law and ethics.

US COPYRIGHT LAW

Let’s start with copyright, and what I did and didn’t learn about it in 2018. If you’re not familiar with the term, see this definition of “copyright” from copyright.gov:

A form of protection provided by the laws of the United States for “original works of authorship”, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.

That might not make it a lot more clear, but in general, there is legal protection for the original author of some works. However, it doesn’t extend to every original creation. For example, recipes are not protected as they are considered lists of ingredients. That’s right! Legally, you can take any recipe you find anywhere, copy it and present it as your own.

Also things that are considered “useful articles” are not protected.  For example, fashion (clothing) designs are not copyright-protected because clothing is considered utilitarian. That means as soon as a design is created, it legally can be used by others. However, if there is “any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object” it might be considered separable and protected. Pretty murky, huh?

So the stuff above? I learned that this year. What I didn’t learn a lot about is how this all applies to quilts. First, quilts that are useful objects (rather than obviously wall art) don’t have their quiltiness protected. However, there may be an original design that is separable and protected. Confusing, especially when you ask what constitutes originality.

It gets more confusing when designers and companies try to limit how consumers use their work, in ways that may or may not conform with the law. For example, if a quilt pattern designer claims legal limits on how many copies you may make of her design, can she legally do that? Does it make a difference if the claim is made in a way that the consumer must acknowledge before purchase, versus being placed within packaging so the consumer couldn’t see it before purchase?

What about fabric yardage that asserts it is for personal or consumer use only, not for commercial use. Is that enforceable?

A different scenario is if a Facebook group copies tutorials or patterns from other quilters and presents them without attribution. (This happened in 2017.) Is a tutorial like a recipe? Is a pattern just a set of instructions? The technique is not copyright protected, but what about the words? It’s confusing for me, partly because I made a big stink when someone else used the wording of one of my tutorials and didn’t provide attribution. She didn’t do the right thing, but was she legally in the wrong? I honestly don’t know anymore.

Another source of confusion comes from how to enforce intellectual property rights. In the US, there is more protection if a creator uses a copyright notice: “The copyright notice consists of three elements. They are the “c” in a circle (©), the year of first publication, and the name of the owner of copyright. A copyright notice is no longer legally required to secure copyright on works first published on or after March 1, 1989, but it does provide legal benefits.” I have a copyright notice in my right margin that follows this format.

If the creator registers their copyright, another layer of protection makes it easier to make a claim in a court of law. A registration is an “official paper denoting that a particular copyright has been registered with the Copyright Office. Provided the claim is registered within five years of the date on which the work is first published, the facts on a certificate of registration and the validity of the copyright are accepted by courts of law as self-evident unless later shown to be false.”

Even with a registered copyright, the creator must have the desire and the resources to pursue complaints within the legal system, including paying an attorney, developing appropriate evidence, and losing all the time needed to take it to court. Copyright is pretty crappy protection, in truth, unless you have good evidence and the monetary value of your loss is enough to make the legal pursuit worth it. Because there is a lot of subjectivity in application, and because the courts don’t have many cases to base new decisions on, quilting copyright law is very murky indeed.

I do hope to learn more about it in 2019.

CULTURAL APPROPRIATION

Again, this might be a term that is new to you. Wikipedia offers the following: “Cultural appropriation, at times also phrased cultural misappropriation, is the adoption of elements of a minority culture by members of the dominant culture.” It specifically refers to use of those cultural elements when there is a power imbalance between two groups. In other words, a white person in America using symbolism from Native Americans might be guilty of cultural appropriation, whereas if the reverse happened, it probably wouldn’t be considered inappropriate or disrespectful use. If someone from the US uses Nordic graphics or designs, that probably wouldn’t be inappropriate, but using elements from eastern Africa might be.

A big example arose in the news this week. In 2003 Disney was granted a US trademark of the phrase “hakuna matata.” The trademark protects Disney’s use of the phrase on clothing and footwear. According to the Guardian,

The expression means “no problem” in Swahili, which is spoken across east Africa and is a national language of Kenya, Tanzania, Uganda, and the Democratic Republic of the Congo.

For most Westerners, their awareness of the expression came from the Disney movie The Lion King, released in 1994. The issue is brought to the fore again because Disney is releasing a new Lion King movie in 2019.

Is it disrespectful, or worse, for Disney to claim exclusive use and benefits from a phrase that is widely used in another part of the world? I would say “yes.”

The answers aren’t always clear cut. Check this post on cultural appropriation in the making of a toddler dress by Baby Gap. In 2010, the post’s author wrote about a dress sold by Baby Gap, which was designed in the form of 45° diamonds, as are used in 8-pointed star quilts. Plains Native American communities, especially Lakota/Dakota, have a history of making these quilts. They are not just a blanket or bed-covering, but are a symbol of celebration, and thus carry extra significance. This article from the Encyclopedia of the Great Plains says quilting was introduced to the Northern Plains Indians in the late 1800s by missionaries. “Quilts eventually replaced buffalo robes in the wrapping of the dead. Star quilts were, and are, given in celebration at births and to honor loved ones at graduations.”

But the style used in these quilts is very similar, and with the same type of construction, as quilts made in North America since at least the 1820s. The Star of Bethlehem (or Lone Star) quilt uses 45° parallelograms radiating from the center to create an eight-pointed star. Here is an especially beautiful version from around 1850. This photo is courtesy of the Museum of Fine Arts in Boston.Star_of_Bethlehem_with_Pomegranate_Trees,_New_York,_c._1850_-_Museum_of_Fine_Arts,_Boston_-_DSC02710

The baby dress is made from diamonds and doesn’t include star points. Aside from its patchwork, it doesn’t look like a quilt from colonial America or the Northern Plains. Claiming that its design is cultural appropriation is a stretch, at best. Fortunately, the post’s author agrees that it’s a good question to raise, but not something to get riled about.

This all brings me back to the questions raised at the top: Couldn’t you make an amazing quilt inspired by the mask above? And is it fair for a white woman from midwestern US to mimic symbolism from across the world? I think the answer to the first question is “yes,” and to the second is “no.” Because I know nothing about the origins, intention, or symbolism of the mask, I cannot treat it with the respect it deserves. While I may use the mask for inspiration, I will not choose to recreate it in fabric.

After all that, I’d say that cultural appropriation isn’t as simple to identify as obscenity, with the old “I know it when I see it” rule. To me it’s clear that Disney is engaged in cultural appropriation. But more generally where the lines are and who crosses them is harder to say. Another thing I didn’t learn in 2018

This was a really long post. If you made it this far, thank you as always for reading. I hope it’s provided a few things to think about. If you have comments or questions, I’d love for you to let us know. 

 

 

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29 thoughts on “Ownership | Cultural Appropriation and Copyright

  1. knitnkwilt

    On the copyright issue, there was an MQG webinar where a lawyer said that the “gray” areas boiled down to whether you had a well informed lawyer who could argue for your use and whether you thought it worth the time and money (if challenged). Made sense to me.

    The area I find confusing is “derivative work”; how far from the original does an inspired piece have to be to avoid that?

    I thing cultural appropriation is an important issue to grapple with. I feel there is a difference between getting material gain (which includes professional reputation) and doing something for one’s own pleasure and use. That said, I feel the need to err on the side of caution rather than exploitation.

    Reply
    1. Melanie McNeil Post author

      Yeah, derivative work is another issue I haven’t really investigated. It’s another legal term that’s used in more casual ways, which helps make it confusing.

      And as to your last paragraph on cultural appropriation, you really nailed how I think about it. Doing something for personal use is different from trying to claim exclusive rights professionally, but I still want to be careful and thoughtful about it. Thank you for your comments.

      Reply
  2. katechiconi

    With cultural appropriation it could be argued that there is a third way. You are not ‘stealing’ the imagery or misappropriating it, you are paying homage to an artefact of cultural iconography. If you were replicating the mask in its entirety (size, materials, wonky lines and all), and just that, I think there might be grounds to argue appropriation. If you integrate the mask or parts of it as an object of beauty into another object of beauty, your own cultural creation (a quilt), does this still feel like appropriation, or is it an act of homage, of appreciation and sharing to bring it to a wider audience?

    Reply
    1. Melanie McNeil Post author

      I do think there are ways to honor other cultures while using elements of their design. But it needs to be done thoughtfully, and those who view that output should also be careful in their assessment. If we can stay respectful both in the creation and the critique, we can all learn something. Thanks as always.

      Reply
    2. lyrickinardLyric

      It’s the power imbalance that comes into play with cultural appropriation. For instance a white model wears cornrow braids and is seen as daring and cool and suddenly white kids start wearing it too. Meanwhile black people are banned from wearing the style in schools, the military, and in the workplace.
      A white cultural icon wears a Native American headdress to attract attention to herself, then suddenly kids want to do the same thing. But Native Americans, who give the headdress deep cultural significance, are still murdered at incredibly alarming rates, with no justice and are still, still, still trying to protect their sacred lands while our government takes them away.
      I’m an artist. I am fascinated and totally in love with Maori art. But no matter how much I study and honor it and respect it, it would be very wrong for me to use hat style in any of my own art, especially to profit from it.

      Reply
      1. Melanie McNeil Post author

        Yes, thanks for the comment. While I’m comfortable with using others’ art to influence me (and you,) I think we have to be very careful in how we use it. And as you say, profiting from it would put one on very thin ice. Thanks.

        Reply
  3. Kerry

    I think if it is for your own use and not for sale it would be fine, but more preferable would be an item “inspired by” which wouldn’t be a total copy but a personal design. I’m not sure what would happen if someone made a similar design – I’m sure it happens often, but rarely seen and that may be down to the age of a person without links to social media.
    I have long been disillusioned by some large corporations to have sole rights to a name or a phrase – it all boils down to money – who has the most wins. Not good. I’ll jump off the soapbox before I get carried away.
    Happy Christmas

    Reply
  4. zippyquilts

    Hmmm…what about appropriation of elements of Amish design by mainstream quilters? “Inspired by” seems like an important but seldom-used phrase. Thanks for a thought-provoking post.

    Reply
    1. Melanie McNeil Post author

      hmm, fair point to question. If “appropriation” is in terms of using the culture of a minority group, then that could certainly apply. If the term is extended to imply use of an oppressed group’s culture, I don’t know. I don’t know if Amish in America are considered oppressed.

      Thanks for reading and commenting.

      Reply
  5. Nann

    I think that calling the Baby Gap dress a cultural appropriation is stretching it. Using that reasoning then making a patchwork skirt (think of the Mountain Artisans project in WV in the mid-70’s) could be considered appropriating the Appalachian culture. Or made-in-China J. C. Penney quilts are commercial exploitation of traditional American quilt making….I think the patterns in the Burkhina Faso piece would make a really cool quilt, and if I were to do that I’d add a note to the label about the design source.

    Reply
  6. Cjh

    Interesting issues. First thought is, if copyright doesn’t extend to phrases, how could it possibly extend to allow Disney to copyright a foreign language phrase expressing a common saying? That’s like trying to copyright “c’est la vie” or “comme ci comme ça”.

    As to cultural appropriation, and the distinction that it is inappropriate in the case of oppressed cultures – that presumes a level of knowledge about which is the true culture of origin, and who is, or was, oppressed that I possibly don’t have. And your questions about crossing lines have no answers. Shall I listen to and enjoy South African jazz, but then refuse to play it because I’m a white American (not that I have skills in that realm), or extend that to Irish jig fiddle music if I’m Scottish and not Irish? Or Harlem Renaissance blues, or Zydeco, etc.? You see, to me it seems impossible to always know which groups are oppressed, at what point in their histories, and which pieces of music are expressions of that (if that plays into it)? More of the murkiness…

    You know me – over analyzing as usual.

    Reply
    1. Melanie McNeil Post author

      To be more clear, Disney has trademarked the saying, not copyrighted it. They allow for different protections. But otherwise your point is the same, I think.

      As to the rest, yeah, history is long and we don’t know all of it. As long as we’re thoughtful and not exploitative, I think we’ll make reasonably good choices. I think it comes down to the issue of fair play.

      Reply
  7. Barb Gorges

    Instructions for making a traditional quilt block can be copyrighted. The traditional design itself cannot be copyrighted.
    It is not ok to make copies of quiltmaking instructions, for instance, for quilt guild members or your students, without permission of the author. If you like the pattern that much, support the author and buy the book or pattern!

    Reply
  8. Jodie Richeal

    I am super interested in this subject. When I was thinking of a name for my SAT tutoring website, I was going to call it “Grade Guru.” And I asked my kids about it because they are all much smarter than I am. My 27 year old daughter told me that it wasn’t good because the word “Guru” felt to her like a cultural appropriation. I still don’t really get it – but I dropped the idea immediately.

    I remember being young and the 70 year olds in my life were hopelessly prejudiced and ill mannered about any cultural differences. And I think that is because they didn’t listen to the newer ideas that were happening in culture. I know I don’t want to become that person – so the answer – to me – is to listen when the young people tell me something that might not make a lot of sense. In other words – I am going to err on the side of caution. I am going to be “politically correct” (obscene words if you live in the United States right now). I am going to try to understand other peoples’ points of view and I am going to try to honor them to my best ability. Because I am well aware that my point of view is not the only one in this world.

    When it comes to creativity – that is a whole other realm of confusing. Creatives are famous for using previous works for inspiration. My guide there is to vocally honor those artists you worship. Let it be known that you are influenced, and make your work a praise of theirs.

    It’s a lot of confusing, honestly.

    Reply
    1. Melanie McNeil Post author

      Wow, a LOT of confusing. Yes. Thanks so much for reading and commenting. I don’t know about the word “guru” and if that would have been appropriation, or if we’ve so incorporated it into the culture already that it would just be fine. But I do agree about erring on the side of caution.

      As to politically correct, that’s just another term for “polite,” usually. 🙂 Thanks again.

      Reply
  9. snarkyquilter

    These issues are so immersed in shades of gray in my mind. There’s the light to dark shading from “inspired by,” “pretty darn close,” to outright ripoff. And then I get lost in the definition of original work. I still remember an award winning art quilt at Houston in 2014 that colorized Dorothea Lange’s famous photo of a migrant mother. To me, that quilt was not original work.

    Cultural appropriation can be seen by some as homage. I tend to call such borrowings cultural appropriation when they are blatant and seek to make $ without acknowledgement of the sources or any attempt to compensate the sources. Possibly a contribution to the guardians (museums, archives, etc.) of the culture being appropriated would help.

    I realize the above issues are different from the copyright issues involved with quilt patterns, teaching materials, etc. Unfortunately, my experiences with quilters showed me few have any qualms about copying copyrighted workshop materials and patterns for others to use. If the materials are in books and magazines, I figure the authors know copying will occur. Not so for workshop handouts and instructions and patterns sold individually.

    I’ll shut up now as I’ve gone on far too long.

    Reply
  10. Stitcher

    A lot to absorb and make sense of with regards to creativeness and sensitivity and terms/phrases in the applicable laws that are so open to interpretation. As with most laws, until someone challenges them, even after on occasion, we only somewhat understand how and why the verdict is supported.

    Think I will put off all that heavy thinking until 2019! Merry Christmas everyone who celebrates! Those who have other traditions, may you have a safe and good ending to 2018!

    Reply
  11. Rachael Woodard

    Becky and I are in the midst of trademarking our name, QuiltedTwins.. and through this I’ve learned that our trademark will ONLY be good in the USA. So, I’ve been contacted by numerous countries WORLD WIDE about trademarking it there. I’m wondering if they could trademark the words they did (Disney) because it’s not commonly used American Words? The whole thing does seem odd to me. Maybe the one approving the trademark was sleeping that day.

    Also, it also seems super weird (and contradictory) that we’re supposed to be welcoming, open to, endorsing and incorporating other cultures into our own culture (I’m a white American woman), while at the same time NOT doing so, lest I be considered trying to appropriate someone else’s culture. It does seem like it’s all dependent upon where you stand and who hates you as to how they’ll see it or pounce on you or love on you, if you do that. If I were a famous Hollywood personality, I could get away with the cornrows, no matter what color my skin or my nationality. If I were a conservative politician or preacher’s daughter, I’d get lambasted.

    As far as copying a well-known symbol from another culture, I’d be very afraid to do that, without a total study of that culture, lest you really mess things up, or “say something” that you don’t mean to say by not understanding the culture. However, I’ve just been putting up a lot of batiks onto our site and there’s an awful lot of “ancient” culture within the patterns of a lot of batiks. I’ve been to ancient Egypt, Turkey and Rome, and I’m seeing a lot of symbols that are demonstrated on the walls of ancient ruins world-wide in these fabrics. Of course, they aren’t as complete as a mask, but a lot of the symbols are a break down of that mask.

    We live in difficult times and it’s hard to figure it all out. I’m sure glad that it’s being brought out, about copyright, especially, because there really is a TON of misinformation out there. In fact, MOST of it being spread “facebook group wide” is wrong, (I’m finding).

    Reply
    1. Melanie McNeil Post author

      Thanks for reading and commenting. There is so much contradictory about both legal protections (copyright, trademark) and more moral or ethical standards of use, that it IS super weird, as you say. I’m so glad to be in on the discussion, along with thoughtful people like you and Becky.

      Reply
  12. Pingback: Artistic Endeavors – Opinions | The Snarky Quilter

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